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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 28, 2005
SBE, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-8419 94-1517641
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
2305 Camino Ramon, Suite 200, San Ramon, California 94583
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (925) 355-2000
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|X| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 Entry into a Material Definitive Agreement.
On March 28, 2005, SBE, Inc., a Delaware corporation ("SBE"), entered into an
Agreement and Plan of Merger and Reorganization (the "Merger Agreement") by and
among SBE, PyX Acquisition Sub, LLC, a California limited liability company, the
sole member of which is SBE (the "Merger Sub"), PyX Technologies, Inc., a
California corporation ("PyX"), and certain shareholders of PyX as individuals
(the "Signing Shareholders"). The Merger Agreement provides for PyX to merge
with and into the Merger Sub (the "Merger"). Upon completion of this
transaction, PyX will cease to exist and SBE will continue as the sole member of
Merger Sub. At the effective time of the merger, each share of issued and
outstanding PyX Common Stock will be converted into the right to receive 0.46
shares of SBE Common Stock, and all outstanding options to acquire PyX Common
Stock will be assumed. A total of 2,561,050 shares of SBE Common Stock will be
issued in respect of outstanding PyX Common Stock (the "SBE Issued Shares") and
an additional 2,038,950 shares of SBE Common Stock will be issuable upon
exercise of assumed stock options (the "SBE Option Shares").
The Board of Directors of each of SBE and PyX have approved the Merger
Agreement. The transactions contemplated by the Merger Agreement are subject to
the approval of SBE's stockholders, SBE obtaining at least $5.0 million in gross
proceeds from a financing to close in connection with the Merger, the receipt by
SBE of audited financial statements of PyX and other customary closing
conditions. Other than the requirement in the Merger Agreement that such
financing result in gross proceeds to SBE of at least $5.0 million, the terms of
the financing have not yet been determined. Such financing is expected to dilute
existing stockholders' interests in SBE, including the interest of the PyX
stockholders, and to require the approval of SBE's stockholders. The parties
have made customary representations, warranties and covenants in the Merger
Agreement, including, among others, covenants to conduct the business of PyX in
the ordinary course between the execution of the Merger Agreement and the
consummation of the Merger and not to engage in certain kinds of transactions
during such period. The Merger Agreement contains certain termination rights for
both SBE and PyX.
The Merger is intended to qualify as a tax-free reorganization within the
meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended. A
total of 95% of the SBE Issued Shares will be subject to a one-year market
standoff, such that only 128,053 of such shares will be freely tradeable prior
to the first anniversary of the closing date. SBE has also agreed to register
the SBE Option Shares on Form S-8 shortly following the closing. The SBE Option
Shares are issuable upon exercise of options subject to vesting restrictions
that do not begin to lapse until February 2006, except that if an optionee's
employment is terminated without cause or the optionee resigns for certain
specified reasons, the vesting will accelerate.
The foregoing description of the Merger Agreement is not complete and is
qualified in its entirety by reference to the Merger agreement, which is filed
as Exhibit 2.1 hereto and is incorporated herein by reference.
The Merger Agreement has been included to provide investors with information
regarding its terms. It is not intended to provide any other factual information
about SBE and PyX. The Merger Agreement contains representations and warranties
each of SBE and PyX made to the other. The assertions embodied in those
representations and warranties are qualified by information in a confidential
disclosure schedule that PyX has delivered to SBE in connection with signing the
Merger Agreement. The disclosure schedule contains information that modifies,
qualifies and creates exceptions to the representations and warranties made by
PyX set forth in the Merger Agreement. Accordingly, investors should not rely on
such representations and warranties as characterizations of the actual state of
facts at the time they were made or otherwise.
Important Additional Information Will Be Filed With The SEC
In connection with the proposed transaction, SBE. intends to file a proxy
statement and other relevant materials with the Securities and Exchange
Commission ("SEC"). BEFORE MAKING ANY VOTING DECISION WITH RESPECT TO THE
PROPOSED TRANSACTION, INVESTORS AND STOCKHOLDERS OF SBE ARE URGED TO READ THE
PROXY STATEMENT AND OTHER RELEVANT MATERIALS BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED TRANSACTION. The proxy statement and other
relevant materials, and any other documents filed by SBE with the SEC, may be
obtained free of charge at the SEC's web site at www.sec.gov. In addition,
investors and stockholders of SBE may obtain free copies of the documents filed
with the SEC by contacting the Chief Financial Officer of SBE at (925) 355-7700
or by writing to the Chief Financial Officer at SBE, Inc., 2305 Camino Ramon,
Suite 200, San Ramon, CA 94583. You may also read and copy any reports,
statements, and other information filed by SBE with the SEC at the SEC public
reference room at 450 Fifth Street, NW, Room 1200, Washington, D.C. 20549.
Please call the SEC at (800) SEC-0330 or visit the SEC's web site for further
information on its public reference room.
SBE and its executive officers and directors may be deemed to be participants in
the solicitation of proxies from the SBE stockholders in favor of the proposed
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transaction. Certain executive officers and directors of SBE have interests in
the proposed transaction that may differ from the interests of stockholders
generally. These interests, if any, will be described in the proxy statement
when it becomes available.
Item 8.01 Other Events.
On March 28, 2005, SBE and PyX issued a joint press release announcing the
execution of the Merger Agreement. The press release is attached as Exhibit 99.1
and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
2.1 Agreement and Plan of Merger and Reorganization, dated as of March
28, 2005 by and among SBE, Inc., a Delaware corporation, PyX
Acquisition Sub, LLC, a California limited liability company, PyX
Technologies, Inc., a California corporation, Andre Hedrick and Nick
Bellinger.
99.1 Text of joint press release, dated March 28, 2005.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SBE, Inc.
March 28, 2005
By: /s/ David Brunton
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David Brunton
Chief Financial Officer
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